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CICC Media Advisory and News Articles on Provisional Release of Lubanga

02 July 2008

Dear all,

Please find below information related to today's decision in the case of The Prosecutor v. Thomas Lubanga Dyilo.

On 2 July 2008, ICC Trial Chamber I ordered the release of the accused, Thomas Lubanga Dyilo based on its earlier decision to halt trial proceedings in what would have been the Court's first trial. This order shall not be enforced for five days during which time the parties may file an appeal. Please find below a CICC media advisory about the decision and related news coverage.

Please take note of the Coalition's policy on situations before the ICC (below), which explicitly states that the CICC will not take a position on potential and current situations before the Court or situations under analysis. The Coalition, however, will continue to provide the most up-to-date information about the ICC.

Regards,

Mariana Rodriguez Pareja
CICC Communications
[email protected]

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I. CICC MEDIA ADVISORY

"ICC TRIAL CHAMBER ORDERS RELEASE OF THOMAS LUBANGA DYILO,
Release of Congolese Warlord May be Appealed Within Five Days," CICC, 2 July 2008, http://www.coalitionfortheicc.org/documents/CICC_PR_LubangaRelease_2July082.pdf

WHAT: On 2 July 2008, Trial Chamber I of the International Criminal Court (ICC) issued an order granting unconditional release to the ICC's first accused, Thomas Lubanga Dyilo.

HOW: Today's release order by ICC Trial Chamber follows the Chamber's Decision of two weeks ago that halted trial proceedings in the Lubanga case. In today's decision, the judges state that "a fair trial of the accused is impossible, and the entire justification for his detention has been removed." On 16 June 2008, the Chamber announced a stay of the proceedings because the Prosecution was unable to make available documents containing potentially exculpatory materials. Exculpatory materials show or tend to show the innocence of the accused, mitigate the guilt of the accused or may affect the credibility of the Prosecution's evidence. For the Chamber, the disclosure of exculpatory evidence in the possession of the Prosecution is a fundamental aspect of the accused's right to a fair trial.

NEXT STEPS: In accordance with rule 154 of the Rules of Procedure and Evidence of the Court, an appeal may be filed within five days from the notification of the Chamber's decision; hence this order will not be enforced until 7 July 2008. Should an appeal be filed within this time and if a request is made in the appeal to suspend Lubanga's release, the accused shall not leave detention until the Appeals Chamber has resolved the issue. Furthermore, according to the Court's Rules, the order releasing the accused shall only be put into effect after arrangements have been made for his transfer to a state that is obliged to receive him.

WHO: The case against Thomas Lubanga Dyilo was the first to proceed toward trial before the ICC. Lubanga was the first person charged in the situation in the Democratic Republic of Congo (DRC) as well as the first ICC detainee. As the alleged leader of the Union of Congolese Patriots (UPC) and the commander-in-chief of its military wing, the Forces patriotiques pour la libération du Congo (FPLC), Lubanga is accused of enlisting and conscripting children under the age of fifteen and using them to participate actively in hostilities, from September 2002 to 13 August 2003.

COMMENT AND BACKGROUND:

"While some of our DRC members who were so instrumental in bringing this case forward will be disappointed by today's decision, it does-at the very minimum-reinforce the ICC's commitment to uphold high standards of fair trial for anyone, even those accused of war crimes," says William R. Pace, convenor of the Coalition for the International Criminal Court.

"The fairness and independence of the judges is fundamental if the ICC is to secure the support of the international community. The sharing and disclosure of evidence is one of the most difficult aspects of international justice, and one that the ICC is just beginning to address," he added.

"Today's decision will have negative repercussions on the ground, with regards to both the perception of the ICC as well as that of the real will of the United Nations to fight against impunity for international crimes," says Christian Hemedi, coordinator of the DRC national coalition. "With regard to the Congolese people and the victims in particular, they will most certainly be disappointed by this news. They will also have the feeling that they have been abandoned by both the Court and the United Nations in their quest for justice."

“It is deeply disturbing that Mr. Lubanga may be freed,” said Bukeni Waruzi, Africa and Middle East Program Coordinator at WITNESS, the international human rights organization. “After a slight light of hope for victims, the courageous work of human rights defenders and civilians on the ground in the DRC where many agreed to come forward to testify against Lubanga at great risk to their own personal safety --- it is unconscionable that the International Criminal Court and the United Nations have failed to come to an agreement that would allow this case to move forward to acquire justice for the thousands of children who have been and continue to be trapped and enslaved as child soldiers.”

The Lubanga case is not the only case before the Court. The ICC has issued twelve arrest warrants for investigations in four of the most brutal conflicts of our time: Darfur, Sudan; Uganda; the Democratic Republic of Congo; and the Central African Republic. To date, four suspects have been arrested.

Experts from DRC human rights organizations and international NGOs are listed on the following pages for comment and background on this decision....

II. NEWS MEDIA ON LUBANGA RELEASE

i. "International Criminal Court orders warlord freed," Mike Corder, Associated Press, 2 July 2008, http://ap.google.com/article/ALeqM5j13RR6I96g4_1PGEBWle3nQpf3ZQD91LQTI00

"Judges at the International Criminal Court on Wednesday ordered the release of the first suspect the tribunal took into custody, saying he cannot get a fair trial because prosecutors are withholding evidence in his case.

...In an order issued Wednesday and posted on the court's Web site, the trial chamber said that "in the absence of the prospect of a trial, the accused cannot be held in custody."

The order added that as the situation now stands, 'a fair trial of the accused is impossible, and the entire justification for his detention has been removed.'

Prosecutors have five days to appeal and Lubanga will not be released before then. An appeals chamber could still order his continued detention while it considers the appeal.

There was no immediate comment from the court's prosecutors.

...'The chamber particularly stresses that it has given full weight to the fears of, and possible consequences to, the victims as a result of a decision to release the accused,' the judges wrote in their ruling."

ii. "ICC to free first suspect unless prosecutor appeals," Reuters, 2 July 2008, http://africa.reuters.com/wire/news/usnL02658488.html

"Judges at the International Criminal Court ordered on Wednesday the release of their first suspect, a Congolese militia leader, but said he should stay in detention pending a likely prosecution appeal.

Judges halted proceedings against Thomas Lubanga last month due to concerns he could be denied a fair trial as his defence cannot view some evidence against him. Accused of enlisting child soldiers, he has been in custody in The Hague since 2006.

In a ruling posted on the court's website, judges ordered his release but gave the prosecution five days to appeal and said he should not leave detention in the meantime.

Victims of his alleged crimes have said his release could reignite conflict in Congo's volatile Ituri region..."

iii. "DR Congo's Lubanga granted release pending war crimes trial: ICC," AFP, 2 July 2008, http://afp.google.com/article/ALeqM5jQNp9WUeQKJ06gvyfqYMv3xoHpmQ

"The International Criminal Court on Wednesday ordered DR Congo's former militia chief Thomas Lubanga to be freed from detention over a delay in his war crimes trial.

'Trial Chamber I orders the release of the accused," said a statement from the tribunal.

...'We intend to lodge an appeal tomorrow morning, so Lubanga does not leave prison,' said the office of the prosecutor.

.... The office of chief prosecutor Luis Moreno-Ocampo has said it was confident the trial would kick off in September."

iv. "ICC orders first suspect freed; prosecution appeals," Reuters, 2 July 2008, http://uk.reuters.com/article/homepageCrisis/idUKL02658488._CH_.242020080702

"International Criminal Court judges ordered the release of their first suspect, a Congolese militia leader, on Wednesday because prosecutors are withholding evidence but said he should remain in custody pending an appeal.

Judges halted proceedings against Thomas Lubanga last month due to concerns he could be denied a fair trial as his defence cannot view some prosecution evidence. Accused of enlisting child soldiers, he has been in custody in The Hague since 2006.

'In the absence of the prospect of a trial, the accused cannot be held in custody,' judges said in their ruling. 'The only correct course is to order the release of the accused because ... a fair trial of the accused is impossible.'

But the judges added Lubanga should not leave detention until the court has dealt with a prosecution appeal...."

v. "CPI: juge ordonne la mise en liberté du Congolais Lubanga, appel suspensif," AFP, 2 July 2008,
http://www.lemonde.fr/web/depeches/0,14-0,39-36060775@7-37,0.html

"A Judge from the International Criminal Court in The Hague ordered this Wednesday the provisional release of the Congolese militia leader Thomas Lubanga, the first person to be charged by the ICC...

'The Chamber ordered the release of the accused, indicated the President of the Chamber Adrian Fulford, in a public decision..."

vi. "Where did it all go wrong for the International Criminal Court?," by Joshua Rozenberg (Telegraph-UK), 2 July 2008, http://www.telegraph.co.uk/news/newstopics/lawreports/rozenberg/2236288/Where-did-it-all-go-wrong-for-the-International-Criminal-Court.html

"Ten years ago this month, delegates from 120 countries agreed in Rome to set up the first permanent international criminal court. I well remember the scenes of jubilation as normally staid diplomats hugged each other with delight. No longer, they told themselves, would the world's worst war criminals escape justice....The court's first prosecutor, Luis Moreno-Ocampo of Argentina, was appointed in 2003. He promptly launched investigations into four African conflicts - with the best progress being made in cases against alleged warlords from the Democratic Republic of Congo. One such defendant, Thomas Lubanga, was the first to be brought before the court.

That was more than two years ago. If everything had gone according to plan, Lubanga would now be on trial in The Hague, charged with using children as weapons of war....

The court found that Mr Moreno-Ocampo had incorrectly relied on a provision in article 54 of the statute, under which he may agree not to disclose confidential information obtained "solely for the purpose of generating new evidence"....But Mr Moreno-Ocampo seemed blithely unconcerned.On June 23, he sought leave to appeal against the stay.

In his mind, simply asking for permission would put everything right. The prosecutor's office said it was "highly confident that the problem will be resolved in the coming weeks and the trial of Thomas Lubanga Dyilo will start in September".

How could Mr Moreno-Ocampo be so sure? Because he had just shown the court a letter from the United Nations that, according to his counsel, "removes the basis for the stay."

To understand why that was such a crass misjudgment by Mr Moreno-Ocampo, you need to know a little about the evidence against Lubanga.

Part of this consists of contemporaneous records by UN peacekeepers -though the UN is only one of seven or eight information-providers.

As the prosecution had previously acknowledged, some of the evidence might support Lubanga's defence if it established that he had been mentally ill, intoxicated or under duress; that he acted in self-defence or had attempted to demobilise the child soldiers; or that his militia was under the control of other countries.

So was the UN offering, at last, to show its documents to the defence? Hardly.

The UN's letter of June 20 said that the documents could be shown to the judges alone. They would have to view them on UN premises in another part of The Hague in the presence only of a UN representative.

They could not take copies or notes of any kind - though they would be allowed to record their recollections of what they had seen once they had left the room.

They would not be allowed to disclose what was in the documents to the defence or anyone else.

The letter was signed by Nicolas Michel, under-secretary-general for legal affairs and legal counsel at the UN. How could any lawyer possibly have thought that this complied with the disclosure requirements in the Rome statute?... Judge Fulford's court ordered Lubanga to be set free, "without restrictions".

That was because "a fair trial of the accused is impossible, and the entire justification for his detention has been removed". As the court explained, "it would be unlawful for the chamber to order him to remain in what, in reality, would be preventative detention or to impose conditional release".

For the time being, though, Lubanga will remain in custody. The prosecutor is bound to appeal within five days and the appeals chamber may order the defendant's continued detention pending its decision.

Even if the prosecutor's appeal is dismissed, Lubanga will not be released until arrangements can be made for his transfer to another country.

Judge Fulford has acted in the finest traditions of an independent judiciary. But the court's first prosecution is in tatters - while subsequent cases will require urgent rescue work. Where did it all go wrong?

Mr Moreno-Ocampo spent far too much of his time and money on a Jurisdiction, Co-operation and Complementarity Division that was supposed to encourage cases to be tried before national courts instead of by the International Criminal Court.

And, trained under what we in Britain describe as the continental or inquisitorial "civil-law" system, he never understood how disclosure operates in an accusatorial structure of which he should have been the principal actor.

The first prosecutor of the International Criminal Court has now failed countless victims whose rights the court was set up to protect.

He has let down the non-governmental organisations that conceived and designed the court - campaigners whose unnatural silence at this time of crisis speaks volumes. As I said here last month, Mr Moreno-Ocampo should resign immediately."

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